Moved by Lord Paddick
94: Clause 29, leave out Clause 29 and insert the following new Clause—“Penalty for affray(1) Section 3 of the Public Order Act 1986 is amended as follows.(2) Insert at the beginning of subsection (7) “Subject to subsection 8,”.(3) After subsection (7) insert—“(8) A person guilty of affray in which a corrosive substance or a bladed article has been used is liable on conviction on indictment to imprisonment for a term not exceeding 4 years or a fine or both, or on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both.””Member’s explanatory statementThis amendment achieves the same end as the Government's approach by adding provisions relating to corrosives and bladed articles to the existing offence of affray.
My Lords, we return to the argument that the Bill is full of unnecessary new legislation that has clearly not been thought through and which is already adequately covered by existing legislation. The Bill is being used simply to send a message that the Government are taking the issues of knife crime and corrosive liquids seriously, instead of investing in those things that really make a difference, such as youth services and community policing.
In Committee I raised the fact that the offence of affray was almost identical to the proposed changes to the existing offences of threatening with an article with a blade, a pointed article or an offensive weapon. Section 1A(1) of the Prevention of Crime Act 1953 states that:
“A person is guilty of an offence if that person … has an offensive weapon with him or her in a public place … unlawfully and intentionally threatens another person with the weapon, and … does so in such a way that there is an immediate risk of serious physical harm to that other person”.
Subsection (2) says:
“For the purposes of this section physical harm is serious if it amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861”.
Section 139AA of the Criminal Justice Act 1988 states:
“A person is guilty of an offence if that person … has an article to which this section applies with him or her in a public place or on school premises … unlawfully and intentionally threatens another person with the article, and … does so in such a way that there is an immediate risk of serious physical harm to that other person”.
Again, serious physical harm means grievous bodily harm under the Offences against the Person Act 1861.
The main differences proposed by the Bill concern the nature of the risk, which is changed from,
“immediate risk of serious physical harm”—
GBH— to the person threatened, to a much wider definition of,
“a reasonable person (“B”) who was exposed to the same threat as A”,
that is, the person being threatened,
“would think that there was an immediate risk of physical harm to B”,
that is, the reasonable person.
So we go from an immediate risk of GBH to the person being threatened to a much vaguer concept of a reasonable person—is that a reasonable martial arts expert or a reasonable old-age pensioner—thinking that there was an immediate risk of physical harm. Does that mean common assault, ABH or GBH?
In Committee, the Minister and I engaged in an intellectual and legalistic argument over the technical differences between the offence of affray—in Section 3 of the Public Order Act 1986—and the proposed new offences. That section states:
“A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety”.
So in affray we have,
“uses or threatens unlawful violence towards another”,
“unlawfully and intentionally threatens another person”.
In affray we have,
“his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety”,
“a reasonable person (“B”) who was exposed to the same threat as A would think there was an immediate risk of physical harm to B”.
Can the Minister really tell the House that there is a practical difference between a “person of reasonable firmness” fearing for their personal safety and a “reasonable person” thinking there was an immediate risk of physical harm? I would be grateful for an example. Indeed, the affray definition does not rely on the extremely vague concept of a “reasonable person” but instead refers to,
“a person of reasonable firmness”— not a reasonable martial arts expert or a reasonable old-age pensioner but what we are really talking about: a person of reasonable firmness.
This legislation also adds further education premises to school premises in the 1988 offence, but affray can be committed in private as well as in public, so all premises are covered. Therefore, the only substantive difference between affray and the new offences is the maximum sentence on indictment: three years for affray and four years for the 1988 offence. This amendment addresses the one outstanding issue by increasing the maximum penalty for affray to four years for an offence in which a corrosive substance or bladed article has been used. I beg to move.
My Lords, this amendment returns, as the noble Lord, Lord Paddick, just said, to an issue that he raised in Committee about the differences between the revised offence of threatening with an offensive weapon in public in Clause 29 of the Bill and the offence of affray under Section 3 of the Public Order Act 1986. I wrote to him on this matter on
The offence of affray deals with circumstances where a bystander observes someone threatening another person and where the bystander feels threatened. The offences of threatening with an offensive weapon in public under Section 1A of the Prevention of Crime Act 1953 and of threatening with an article with a blade or point or offensive weapons under Section 139AA of the Criminal Justice Act 1998 deal with circumstances where a person is themselves being threatened. Indeed, in practice it is possible to commit both offences at the same time, as the noble Lord will be aware and as the CPS charging advice sets out. An example would be where someone is holding person A by the throat in the road, screaming and shouting, but also waving a knife around in the air so that person B thinks that the defendant might also come for them—that would be an offence of affray—or someone might start a fight in a pub in such a way that people nearby think that the person might also start on them, as opposed to cases where there is not that perception that a bystander would be affected. Case law examples include driving a car at another occupied vehicle or setting dogs on the police with the words, “Go on! Go on!”—only in case law does such language get used.
Therefore, affray concerns a reasonable bystander who witnesses someone else being threatened and fears for their own personal safety. This is a different test from that under the offences amended by the Bill, which ask whether a reasonable person exposed to the same threat as the victim would think that there is an immediate risk of physical harm to that victim. Under the offences in the Bill it is therefore what a reasonable person in the victim’s shoes would be likely to feel when threatened, rather than whether a person witnessing a threat against someone else also feels threatened. Amendment 94 therefore fails to address the fact that these offences deal with different things. As I have indicated, it is not just about penalties, although I fully accept that I highlighted this as a key difference in Committee. Affray is a public order offence and therefore focuses on the weapon and the threat to the wider public, rather than the impact on the victim. The offences of threatening in public deal with the victim being threatened.
I hope, in the light of this further explanation, that the noble Lord is persuaded that we are not creating unnecessary duplication in the criminal law and, on that basis, will be content to withdraw his amendment.
My Lords, I am grateful to the Minister for her explanation. I do not think that it does away with my general comments about the legislation as a whole but on this occasion, I beg leave to withdraw the amendment.
Amendment 94 withdrawn.